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Court of Criminal Appeal 3 August 2018

Rampe v R

[2018] NSWCCA 163

Sexual offences
CRIME SENTENCE APPEAL APPLICANT STEPFATHER OF VICTIM PAROLE PERIOD TRUONG V R R V LE

Citation: Rampe v R [2018] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 3 August 2018
Judges: Beazley P, R A Hulme J, Button J

Background

The applicant, a stepfather to a young girl aged 9 to 10 at the time of the offending, was sentenced in the District Court at Coffs Harbour in March 2017 for 30 offences committed over approximately one year. The offences included 15 counts of using a child under 14 to make child abuse material, 8 counts of indecent assault upon a child under 16, 6 counts of aggravated sexual intercourse with a child aged between 10 and 14, and one count of disseminating child abuse material. A further offence of possessing child abuse material involving unknown children was taken into account on sentence.

The applicant received an aggregate sentence of 16 years' imprisonment with a non-parole period of 12 years. He sought leave to appeal, arguing that the sentence was flawed in three respects.

The applicant cannot be identified in these proceedings because any identification would also identify the child victim and another child. He is referred to in the case title by a pseudonym.

  • Whether the sentencing judge failed to properly assess the objective criminality of each offence when setting indicative sentences, particularly where multiple offences received the same indicative sentence
  • Whether the sentencing judge erred by failing to set non-parole periods in respect of those offences that attracted standard non-parole periods, when imposing the aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the aggregate sentence of 16 years with a 12-year non-parole period was manifestly excessive

Decision

On the first ground, the Court rejected the argument that identical indicative sentences across multiple offences necessarily demonstrated a failure to assess objective seriousness. Where offences are similar in nature and the facts disclose little variation in seriousness, the same indicative sentence for each is not indicative of error. The Court found that the sentencing judge had engaged with the individual offences appropriately.

On the second ground, the Court acknowledged that the sentencing judge had not specified what non-parole period would have applied to each individual offence when imposing the aggregate sentence. However, drawing on the authority of Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36, the Court confirmed that this omission does not invalidate the aggregate sentence. The failure to indicate individual non-parole periods was not a vitiating error.

On the third ground, the Court found the sentence was not manifestly excessive. It noted the applicant's offending constituted a sustained course of sexual exploitation of his stepdaughter over an entire year, involving 30 offences with maximum penalties ranging from 10 to 20 years, several carrying standard non-parole periods of 6 to 9 years. The Court also emphasised the additional possession offence, which involved at least 1,000 images and videos, many in the most serious classification categories.

The Court held that nothing less than a substantial aggregate sentence could properly reflect the totality of the applicant's criminality, and that the sentence served the purposes of denunciation, accountability, and deterrence. Button J added that the sentence, while undoubtedly lengthy, was condign and within the sentencing discretion available to the judge below.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Where an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 is imposed, a sentencing judge's failure to indicate what non-parole period would have been set for each individual offence does not invalidate the sentence.
  • Identical indicative sentences across multiple similar offences do not, without more, establish that the sentencing judge failed to assess the objective criminality of each offence individually.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that a substantial aggregate sentence was warranted where 30 offences constituted a prolonged and serious course of child sexual exploitation, with individual offences carrying maximum penalties of up to 20 years.
  • Favourable personal circumstances, including a difficult childhood and an early plea of guilty, do not necessarily render a lengthy sentence manifestly excessive where the criminality is of sufficient gravity.
  • The Court confirmed that the correct approach under PG v R [2017] NSWCCA 179 is to apply a guilty plea discount to each indicative sentence rather than to the aggregate, and noted the sentencing judge had expressly adopted this approach.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66C(2), 91G(1)(a), 91H(2), 578A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
- PG v R [2017] NSWCCA 179
- Delaney v R; R v Delaney [2013] NSWCCA 150
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Obeid v R [2017] NSWCCA 221; 350 ALR 103
- R v Brown [2012] NSWCCA 199
- R v NT [2015] NSWCCA 136
- R v Nykolyn [2012] NSWCCA 219
- R v Van Ryn [2016] NSWCCA 1
- Ridgeway v R [2016] NSWCCA 184
- Riggio v R [2015] NSWCCA 223